Special educational
needs and disability
code of practice:
0 to 25 years
Statutory guidance for organisations
which work with and support children
and young people who have special
educational needs or disabilities
2
Contents
Foreword
11
Introduction
12
About this guidance 12
Expiry or review date 12
To which legislation does this guidance refer? 12
Who must have regard to this guidance? 13
The First-tier Tribunal (Special Educational Needs and Disability) 13
Changes from the SEN Code of Practice (2001) 13
Implementation of the Code of Practice 14
Special educational needs (SEN) 15
Disabled children and young people 16
Related legislation and guidance 18
1 Principles
19
What this chapter covers 19
Relevant legislation 19
Principles underpinning this Code of Practice 19
The principles in practice 20
Participating in decision making 20
Supporting children, young people and parents to participate in decisions
about their support 21
Involving children, young people and parents in planning, commissioning and
reviewing services 22
Parent Carer Forums 22
Identifying children and young people’s needs 23
Greater choice and control for parents and young people over their support 24 Collaboration between education, health and social care services to provide
support 24
High quality provision to meet the needs of children and young people
with SEN 25
A focus on inclusive practice and removing barriers to learning 25
Supporting successful preparation for adulthood 28
2 Impartial information, advice and support
30
What this chapter covers 30
Relevant legislation 30
Introduction 30
3
Children 32
Parents 32
Young people 32
What needs to be provided? 33
Additional support 35
Support for parents in HM Armed Forces 36
3 Working together across education, health and care for joint
outcomes
37
What this chapter covers 37
Relevant legislation 38
The legal framework 38
Scope of joint commissioning arrangements 39
Establishing effective partnerships across education, health and care 41 Partnership with children, young people and parents 42 Joint understanding: Joint Strategic Needs Assessments 43 Responsibility for decision-making in joint commissioning arrangements 44 Using information to understand and predict need for services 45
Joint planning 46
Deciding on shared outcomes 46
Making best use of resources 47
Personal Budgets 48
Joint delivery 49
Joint review to improve service offered 49
Education, Health and Care: roles and responsibilities 50
Designated Medical/Clinical Officer 50
Children’s social care 51
Adult social care 52
Health services for children and young people with SEN and disabilities and
their families 53
Local authorities’ role in delivering health services 54
The health commissioning duty 55
Schools and post-16 settings as commissioners 55
Regional commissioning: meeting the needs of children and young people with
highly specialised and/or low-incidence needs 55
Local accountability 56
4 The Local Offer
59
What this chapter covers 59
4
What is the Local Offer? 59
Preparing and reviewing the Local Offer 61
Involving children and young people and parents 61
Involving schools, colleges, health services and others 63
Keeping the Local Offer under review 64
Publishing comments about the Local Offer 65
Taking action in response to comments about the Local Offer 66
What must be included in the Local Offer? 66
Educational, health and care provision 68
Training and apprenticeships 73
Transport 73
Support available to children and young people to help them prepare for
adulthood 74
Information about how to seek an EHC needs assessment 76
Information, advice and support 77
Publishing the Local Offer 77
5 Early years providers
78
What this chapter covers 78
Relevant legislation 78
Improving outcomes: high aspirations and expectations for children with SEN 79
Equality Act 2010 80
Medical conditions 81
SEN in the early years 81
From birth to two – early identification 81
Early years provision 82
Progress check at age two 83
Assessment at the end of the EYFS – the EYFS profile 84
Identifying needs in the early years 84
SEN support in the early years 86
Assess 86
Plan 86
Do 87
Review 87
Transition 88
Involving specialists 88
Requesting an Education, Health and Care needs assessment 88
Record keeping 88
Keeping provision under review 88
5
The role of the Area SENCO 89
Funding for SEN support in the early years 90
6 Schools
91
What this chapter covers 91
Relevant legislation 91
Improving outcomes: high aspirations and expectations for children and young
people with SEN 92
Equality and inclusion 93
Medical conditions 94
Curriculum 94
Careers guidance for children and young people 94
Identifying SEN in schools 94
Broad areas of need 97
Special educational provision in schools 99
SEN support in schools 100
Transition 102
Involving specialists 102
Requesting an Education, Health and Care needs assessment 103 Involving parents and pupils in planning and reviewing progress 104
Use of data and record keeping 105
Publishing information: SEN information report 106
The role of the SENCO in schools 108
Funding for SEN support 109
7 Further education
111
What this chapter covers 111
Relevant legislation 111
Introduction 111
Statutory duties on post-16 institutions 112
Equality Act 2010 113
Careers guidance for young people 114
Identifying SEN 114
SEN support in college 114
Assessing what support is needed 115
Planning the right support 115
Putting the provision in place 116
Keeping support under review 116
Expertise within and beyond the college 116
6
Funding for SEN support 118
8 Preparing for adulthood from the earliest years
120
What this chapter covers 120
Relevant legislation 121
Introduction 122
Strategic planning for the best outcomes in adult life 122
Duties on local authorities 123
Starting early 124
Support from Year 9 onwards (age 13-14) 124
Children and young people with EHC plans: preparing for adulthood reviews 125 Young people preparing to make their own decisions 126
16- to 17-year-olds 127
Support for young people 128
The Mental Capacity Act 128
Planning the transition into post-16 education and training 128
Careers advice for children and young people 130
High quality study programmes for students with SEN 130
Pathways to employment 131
Packages of support across five days a week 132
Transition to higher education 133
Young people aged 19 to 25 135
Funding places for 19- to 25-year-olds 135
Transition to adult health services 136
Transition to adult social care 136
Transition assessments for young people with EHC plans 137
Continuity of provision 138
EHC plans and statutory care and support plans 138
Personal Budgets 139
Leaving education or training 140
9 Education, Health and Care needs assessments and plans
141
What the chapter covers 141
Relevant legislation 141
Introduction 142
Requesting an EHC needs assessment 143
Considering whether an EHC needs assessment is necessary 144 Principles underpinning co-ordinated assessment and planning 147 Involving children, young people and parents in decision-making 147
7
Co-ordination 149
Sharing information 150
Timely provision of services 150
Cross-agency working 151
Looked after children 151
Timescales for EHC needs assessment and preparation of an EHC plan 151
Advice and information for EHC needs assessments 155
Deciding whether to issue an EHC plan 157
Decision not to issue an EHC plan 159
Transparent and consistent decision-making 159
Writing the EHC plan 160
Content of EHC plans 161
Outcomes 162
What to include in each section of the EHC plan 164
Agreeing the health provision in EHC plans 170
Responsibility for provision 170
The draft EHC plan 171
Requests for a particular school, college or other institution 172 Where no request is made for a particular school or college or a request for a
particular school or college has not been met 174
Reasonable steps 175
Requesting a Personal Budget 178
Mechanisms for delivery of a Personal Budget 179
Setting and agreeing the Personal Budget 179
Scope of Personal Budgets 181
Use of direct payments 183
Finalising and maintaining the EHC plan 185
Maintaining special educational provision in EHC plans 186
Maintaining social care provision in EHC plans 187
Maintaining health provision in EHC plans 188
Specific age ranges 188
All children under compulsory school age 188
Children aged under 2 188
Children aged 2 to 5 189
Young people aged 19 to 25 190
Transfer of EHC plans 192
Transfers between local authorities 192
Transfers between clinical commissioning groups 193
8
Reviews where a child or young person attends a school or other institution 195 Reviews where a child or young person does not attend a school or other
institution 197
Reviews of EHC plans for children aged 0 to 5 198
Transfer between phases of education 198
Preparing for adulthood in reviews 199
Re-assessments of EHC plans 200
Requesting a re-assessment 200
The re-assessment process 201
Amending an existing plan 201
Ceasing an EHC plan 202
Disclosure of an EHC plan 205
Transport costs for children and young people with EHC plans 206
10 Children and young people in specific circumstances
208
What this chapter covers 208
Relevant legislation 208
Looked-after children 209
Care leavers 211
SEN and social care needs, including children in need 211
Children’s social care 211
Power to continue children’s social care services to those aged 18 to 25 213
Children and young people educated out of area 214
Children and young people with SEN educated at home 214 Children with SEN who are in alternative provision 216 Children and young people in alternative provision because of health needs 218
Children of Service personnel 219
Action to take in respect of Service children with SEN 219
First-tier Tribunal (SEN and Disability) 221
Further information 221
Children and young people with SEN who are in youth custody 222
Relevant legislation 222
What this section covers 222
Introduction 223
Summary of statutory requirements 223
Sharing information 225
Education for children and young people in youth custody 225 Healthcare for children and young people in youth custody 226 Requesting an EHC needs assessment for a detained person 227
9
Considering whether an assessment of post-detention education, health
and care needs is necessary 227
Advice and information for an assessment of post-detention education,
health and care needs 229
Preparing an EHC plan for a detained person in custody 233
Provision of information, advice and support 234
Partial assessment on entry to or exit from custody 235 Transfer between places of relevant youth accommodation 236
Appeals and mediation 236
Keeping an EHC plan and arranging special educational provision 237 Arranging health care provision for detained children and young peopl
with EHC plans 239
Monitoring provision in custody 240
Review on release from youth custody 240
Moving to a new local authority on release 241
Looked after children remanded or sentenced to custody 241 Transition from youth justice to a custodial establishment for adults 242 Education on release for those in a custodial establishment for adults 242
Cross-border detention 243
11 Resolving disagreements
244
What this chapter covers 244
Relevant legislation 244
Principles for resolving disagreements 245
Early resolution of disagreements 248
Disagreement resolution arrangements and mediation 248
Disagreement resolution services 248
Contracting disagreement resolution services 250
Mediation 251
Contracting services for mediation and mediation information 252
Routes to mediation 252
Mediation on matters which can be appealed to the Tribunal 252
Mediation advice before mediation 253
Exceptions to the requirement to contact a mediation adviser 254 Going to mediation about matters which can be appealed to the Tribunal 254 Mediation on the health and social care elements of an EHC plan 255
Effective mediation 257
Children and young people in youth custody 258
10
Parents’ and young people’s right to appeal to the Tribunal about EHC needs
assessments and EHC plans 258
The First-tier Tribunal (SEN and Disability) 258
The role and function of the Tribunal 259
Who can appeal to the Tribunal about EHC needs assessments and plans 259
What parents and young people can appeal about 259
Conditions related to appeals 260
Decisions the Tribunal can make 260
How parents and young people can appeal 261
Disability discrimination claims 262
Exclusion 262
Legal aid 264
Complaints procedures 265
Early education providers’ and schools’ complaints procedures 265
Complaints to the Secretary of State 266
Complaints to Ofsted 266
Post-16 institution complaints 267
Local Authority complaints procedures 268
Local Government Ombudsman 268
The Parliamentary and Health Service Ombudsman 269
Judicial review 270
NHS Complaints 270
Complaints about social services provision 271
Annex 1: Mental Capacity
273
Annex 2: Improving practice and staff training in education
settings
276
Glossary of terms
278
11
Foreword
From the Parliamentary Under-Secretary of State for Health
and the Parliamentary Under-Secretary of State for
Children and Families
Our vision for children with special educational needs and disabilities is the same as for all children and young people – that they achieve well in their early years, at school and in college, and lead happy and fulfilled lives.
This new Special Educational Needs and Disability Code of Practice will play a vital role in underpinning the major reform programme.
For children and young people this means that their experiences will be of a system which is less confrontational and more efficient. Their special educational needs and disabilities will be picked up at the earliest point with support routinely put in place quickly, and their parents will know what services they can reasonably expect to be provided. Children and young people and their parents or carers will be fully involved in decisions about their support and what they want to achieve. Importantly, the aspirations for children and young people will be raised through an increased focus on life outcomes, including employment and greater independence.
Local authorities and their local health partners have been working together to prepare for the new arrangements, to jointly plan and commission services for children and young people who have special educational needs or are disabled. Those with more complex needs will have an integrated assessment and where appropriate a single Education, Health and Care plan for their support.
The Code of Practice is the product of extensive consultation, and draws on the experience of pathfinder local authorities which have been piloting new approaches with local communities. We have listened to a wide range of individuals and groups and the result is a Code which will help everyone working with children and young people with special educational needs and disability to secure for them the outcomes from education, health and social care which will make the biggest difference to their lives.
DR DAN POULTER EDWARD TIMPSON
Parliamentary Under-Secretary of State
12
Introduction
About this guidance
i. This Code of Practice provides statutory guidance on duties, policies and procedures relating to Part 3 of the Children and Families Act 2014 and associated regulations and applies to England. It relates to children and young people with special
educational needs (SEN) and disabled children and young people. A ‘young person’ in this context is a person over compulsory school age and under 25. Compulsory school age ends on the last Friday of June in the academic year in which they become 16. For ease of reference, young people are referred to in this Code of Practice as ‘over 16’.
In this Code of Practice, where the text uses the word ‘must’it refers to a statutory requirement under primary legislation, regulations or case law.
The bodies listed in paragraph iv. must have regard to the Code of Practice. This means that whenever they are taking decisions they must give consideration to what the Code says. They cannot ignore it. They must fulfil their statutory duties towards children and young people with SEN or disabilities in the light of the guidance set out in it. They must be able to demonstrate in their arrangements for children and young people with SEN or disabilities that they are fulfilling their statutory duty to have regard to the Code. So, where the text uses the word ‘should’ it means that the guidance contained in this Code must be considered and that those who must have regard to it will be expected to explain any departure from it.
Expiry or review date
ii. This guidance will be kept under review and updated when necessary.
To which legislation does this guidance refer?
iii. This guidance refers to Part 3 of the Children and Families Act 2014 and associated regulations. The regulations associated with the Children and Families Act 2014 are:
• The Special Educational Needs and Disability Regulations 2014 • The Special Educational Needs (Personal Budgets) Regulations 2014 • The Special Educational Needs and Disability (Detained Persons)
Regulations 2015
• The Children and Families Act 2014 (Transitional and Saving Provisions)(No 2) Order 2014
13
Who must have regard to this guidance?
iv. This Code of Practice is statutory guidance for the following organisations:
• local authorities (education, social care and relevant housing and employment and other services)
• the governing bodies of schools, including non-maintained special schools • the governing bodies of further education colleges and sixth form colleges • the proprietors of academies (including free schools, university technical
colleges and studio schools)
• the management committees of pupil referral units
• independent schools and independent specialist providers approved under Section 41 of the Children and Families Act 2014
• all early years providers in the maintained, private, voluntary and independent sectors that are funded by the local authority
• the National Health Service Commissioning Board • clinical commissioning groups (CCGs)
• NHS Trusts
• NHS Foundation Trusts • Local Health Boards
• Youth Offending Teams and relevant youth custodial establishments • The First-tier Tribunal (Special Educational Needs and Disability) (see v.)
The First-tier Tribunal (Special Educational Needs and
Disability)
v. When considering an appeal from a parent or young person the First-tier Tribunal (Special Educational Needs and Disability) (‘the Tribunal’) must have regard to this Code of Practice. The Tribunal will expect local authorities, early education settings, schools and colleges to be able to explain any departure from the Code, where it is relevant to the case it is considering.
Changes from the SEN Code of Practice (2001)
vi. The main changes from the SEN Code of Practice (2001) reflect the changes introduced by the Children and Families Act 2014. These are:
14
• The Code of Practice (2014) covers the 0-25 age range and includes
guidance relating to disabled children and young people as well as those with SEN
• There is a clearer focus on the participation of children and young people and parents in decision-making at individual and strategic levels
• There is a stronger focus on high aspirations and on improving outcomes for children and young people
• It includes guidance on the joint planning and commissioning of services to ensure close co-operation between education, health and social care • It includes guidance on publishing a Local Offer of support for children and
young people with SEN or disabilities
• There is new guidance for education and training settings on taking a graduated approach to identifying and supporting pupils and students with SEN (to replace School Action and School Action Plus)
• For children and young people with more complex needs a co-ordinated assessment process and the new 0-25 Education, Health and Care plan (EHC plan) replace statements and Learning Difficulty Assessments (LDAs)
• There is a greater focus on support that enables those with SEN to succeed in their education and make a successful transition to adulthood
• Information is provided on relevant duties under the Equality Act 2010
• Information is provided on relevant provisions of the Mental Capacity Act 2005 • There is new guidance on supporting children and young people with SEN
who are in youth custody.
Implementation of the Code of Practice
Implementation
vii. From 1 September 2014 the majority of Part 3 of the Children and Families Act 2014, its associated regulations and this Code of Practice will be in force, subject to any transitional arrangements.
viii. From 1 September 2014 all the organisations listed in paragraph iv. must have regard to this Code of Practice.
15
ix. Subject to any transitional arrangements made, from that date the following guidance will cease to have effect:
• SEN Code of Practice (2001) • Inclusive Schooling (2001)
• Section 139A Learning Difficulty Assessments Statutory Guidance (2013)
Transitional arrangements
x. From 1 September 2014 transitional arrangements will be in place to support the changeover from the current system to the new system in a phased and ordered way. These arrangements, which are set out in a statutory transitional order and accompanied by transitional guidance, will facilitate the transfer of those with statements to EHC plans. They ensure that during the transition period local authorities must continue to comply with elements of the Education Act 1996 in relation to children with statements, and the Learning and Skills Act 2000 in relation to young people who have had Learning Difficulty Assessments and remain in education or training (provided they still have learning difficulties).
xi. The legal test of when a child or young person requires an EHC plan remains the same as that for a statement under the Education Act 1996. Therefore, it is expected that all those who have a statement and who would have continued to have one under the current system, will be transferred to an EHC plan – no-one should lose their statement and not have it replaced with an EHC plan simply because the system is changing. Similarly, local authorities have undertaken LDAs for young people either because they had a statement at school or because, in the opinion of the local authority, they are likely to need additional support as part of their further education or training and would benefit from an LDA to identify their learning needs and the provision required to meet those needs. Therefore, the expectation is that young people who are currently receiving support as a result of an LDA and remain in further education or training during the transition period, who request and need an EHC plan, will be issued with one.
xii. Guidance on the provisions in the Children and Families Act 2014 relating to those in youth custody, which came into force in April 2015, is set out in Chapter 10.
Special educational needs (SEN)
xiii. A child or young person has SEN if they have a learning difficulty or disability which calls for special educational provision to be made for him or her.
xiv. A child of compulsory school age or a young person has a learning difficulty or disability if he or she:
16
• has a significantly greater difficulty in learning than the majority of others of the same age, or
• has a disability which prevents or hinders him or her from making use of facilities of a kind generally provided for others of the same age in mainstream schools or mainstream post-16 institutions
xv. For children aged two or more, special educational provision is educational or training provision that is additional to or different from that made generally for other children or young people of the same age by mainstream schools, maintained
nursery schools, mainstream post-16 institutions or by relevant early years providers. For a child under two years of age, special educational provision means educational provision of any kind.
xvi. A child under compulsory school age has special educational needs if he or she is likely to fall within the definition in paragraph xiv. above when they reach compulsory school age or would do so if special educational provision was not made for them (Section 20 Children and Families Act 2014).
xvii. Post-16 institutions often use the term learning difficulties and disabilities (LDD). The term SEN is used in this Code across the 0-25 age range but includes LDD.
Disabled children and young people
xviii. Many children and young people who have SEN may have a disability under the Equality Act 2010 – that is ‘…a physical or mental impairment which has a long-term and substantial adverse effect on their ability to carry out normal day-to-day
activities’. This definition provides a relatively low threshold and includes more
children than many realise: ‘long-term’ is defined as ‘a year or more’ and ‘substantial’ is defined as ‘more than minor or trivial’. This definition includes sensory impairments such as those affecting sight or hearing, and long-term health conditions such as asthma, diabetes, epilepsy, and cancer. Children and young people with such conditions do not necessarily have SEN, but there is a significant overlap between disabled children and young people and those with SEN. Where a disabled child or young person requires special educational provision they will also be covered by the SEN definition.
xix. The Equality Act 2010 sets out the legal obligations that schools, early years providers, post-16 institutions, local authorities and others have towards disabled children and young people:
• They must not directly or indirectly discriminate against, harass or victimise disabled children and young people
17
• They must not discriminate for a reason arising in consequence of a child or young person’s disability
• They must make reasonable adjustments, including the provision of auxiliary aids and services, to ensure that disabled children and young people are not at a substantial disadvantage compared with their peers. This duty is
anticipatory – it requires thought to be given in advance to what disabled children and young people might require and what adjustments might need to be made to prevent that disadvantage
• Public bodies, including further education institutions, local authorities,
maintained schools, maintained nursery schools, academies and free schools are covered by the public sector equality duty and, when carrying out their functions, must have regard to the need to eliminate discrimination, promote equality of opportunity and foster good relations between disabled and non-disabled children and young people. Public bodies also have specific duties under the public sector equality duty and must publish information to
demonstrate their compliance with this general duty and must prepare and publish objectives to achieve the core aims of the general duty. Objectives
must be specific and measurable. The general duty also applies to bodies that are not public bodies but that carry out public functions. Such bodies include providers of relevant early years education, non-maintained special schools, independent specialist providers and others making provision that is funded from the public purse.
xx. The duties cover discrimination in the provision of services and the provision of education, including admissions and exclusions. All providers must make
reasonable adjustments to procedures, criteria and practices and by the provision of auxiliary aids and services. Most providers must also make reasonable adjustments by making physical alterations. Schools and local authority education functions are not covered by this last duty, but they must publish accessibility plans (and local authorities, accessibility strategies) setting out how they plan to increase access for disabled pupils to the curriculum, the physical environment and to information. xxi. School governing bodies and proprietors must also publish information about the
arrangements for the admission of disabled children, the steps taken to prevent disabled children being treated less favourably than others, the facilities provided to assist access of disabled children, and their accessibility plans.
xxii. Where a child or young person is covered by SEN and disability legislation,
reasonable adjustments and access arrangements should be considered as part of SEN planning and review. Where school governors are publishing information about
18
their arrangements for disabled children and young people, this should be brought together with the information required under the Children and Families Act 2014. xxiii. Here, and throughout this Code the term ‘parent’ includes all those with parental
responsibility, including parents and those who care for the child.
Related legislation and guidance
xxiv. Where appropriate, references are made in this Code to other relevant legislation. The Code does not give guidance in relation to that legislation but signals where it can be found in the References section at the end of this Code.
xxv. Organisations may find it helpful to consider the following related guidance:
• Working Together to Safeguard Children(2013): Statutory guidance from the Department for Education which sets out what is expected of
organisations and individuals to safeguard and promote the welfare of children
• The Children Act 1989 Guidance and Regulations Volume 2 (Care
Planning Placement and Case Review) and Volume 3 (Planning Transition to Adulthood for Care Leavers): Guidance setting out the responsibilities of local authorities towards looked after children and care leavers
• Equality Act 2010: Advice for schools:Non-statutory advice from the Department for Education, produced to help schools understand how the Equality Act affects them and how to fulfil their duties under the Act
• Reasonable adjustments for disabled pupils (2012): Technical guidance from the Equality and Human Rights Commission
• Supporting pupils at school with medical conditions (2014): statutory guidance from the Department for Education
• The Mental Capacity Act Code of Practice: Protecting the vulnerable (2005)
19
1 Principles
What this chapter covers
Section19 of the Children and Families Act 2014 sets out the principles underpinning the legislation and the guidance in this Code of Practice. This chapter sets out those principles and how they are reflected in the chapters that follow.
Relevant legislation
Section 19 of the Children and Families Act 2014
Principles underpinning this Code of Practice
1.1 Section 19 of the Children and Families Act 2014 makes clear that local authorities, in carrying out their functions under the Act in relation to disabled children and young people and those with special educational needs (SEN), must have regard to:
• the views, wishes and feelings of the child or young person, and the child’s parents
• the importance of the child or young person, and the child’s parents, participating as fully as possible in decisions, and being provided with the information and support necessary to enable participation in those decisions • the need to support the child or young person, and the child’s parents, in
order to facilitate the development of the child or young person and to help them achieve the best possible educational and other outcomes, preparing them effectively for adulthood
1.2 These principles are designed to support:
• the participation of children, their parents and young people in decision- making
• the early identification of children and young people’s needs and early intervention to support them
• greater choice and control for young people and parents over support • collaboration between education, health and social care services to provide
support
• high quality provision to meet the needs of children and young people with SEN
20
• a focus on inclusive practice and removing barriers to learning
• successful preparation for adulthood, including independent living and employment
The principles in practice
Participating in decision making
1.3 Local authorities must ensure that children, their parents and young people are involved in discussions and decisions about their individual support and about local provision.
1.4 Early years providers, schools and colleges should also take steps to ensure that young people and parents are actively supported in contributing to needs
assessments, developing and reviewing Education, Health and Care (EHC) plans. Specifically, local authorities must
• ensure the child’s parents or the young person are fully included in the EHC needs assessment process from the start, are fully aware of their opportunities to offer views and information, and are consulted about the content of the plan (Chapter 9)
• consult children with SEN or disabilities, and their parents and young people with SEN or disabilities when reviewing local SEN and social care provision (Chapter 4)
• consult them in developing and reviewing their Local Offer (Chapter 4) • make arrangements for providing children with SEN or disabilities, and their
parents, and young people with SEN or disabilities with advice and information about matters relating to SEN and disability (Chapter 2)
1.5 Clinical Commissioning Groups (CCGs), NHS Trusts or NHS Foundation Trusts who are of the opinion that a child under compulsory school age has or probably has SEN or a disability must give the child’s parents the opportunity to discuss their opinion with them before informing the local authority (see paragraph 1.16).
1.6 Children have a right to receive and impart information, to express an opinion and to have that opinion taken into account in any matters affecting them from the early years. Their views should be given due weight according to their age, maturity and capability (Articles 12 and 13 of the United Nations Convention on the Rights of the Child).
21
1.7 Parents’ views are important during the process of carrying out an EHC needs assessment and drawing up or reviewing an EHC plan in relation to a child. Local authorities, early years providers and schools should enable parents to share their knowledge about their child and give them confidence that their views and
contributions are valued and will be acted upon. At times, parents, teachers and others may have differing expectations of how a child’s needs are best met.
Sometimes these discussions can be challenging but it is in the child’s best interests for a positive dialogue between parents, teachers and others to be maintained, to work through points of difference and establish what action is to be taken.
1.8 The Children and Families Act 2014 gives significant new rights directly to young people once they reach the end of compulsory school age (the end of the academic year in which they turn 16). When a young person reaches the end of compulsory school age, local authorities and other agencies should normally engage directly with the young person rather than their parent, ensuring that as part of the planning
process they identify the relevant people who should be involved and how to involve them. Chapter 8 sets out how some decision-making rights transfer from parents to young people at this stage and how families will continue to play a critical role in supporting a young person with SEN. Most young people will continue to want, or need, their parents and other family members to remain involved in discussions and decisions about their future. Some young people, and possibly some parents, will not have the mental capacity to make certain decisions or express their views. Provision is made in the Children and Families Act (Section 80) to deal with this and Annex 1 to this Code provides further details.
Supporting children, young people and parents to participate in
decisions about their support
1.9 Local authorities must ensure that children, young people and parents are provided with the information, advice and support necessary to enable them to participate in discussions and decisions about their support. This should include information on their rights and entitlements in accessible formats and time to prepare for
discussions and meetings. From Year 9 onwards, particularly for those with Education, Health and Care plans, local authorities, schools, colleges and other agencies will be involved in the planning for their transition to adult life, the future and how to prepare for it, including their health, where they will live, their
relationships, control of their finances, how they will participate in the community and achieve greater independence. Further details are given in Chapter 8. Local
authorities should help children and their families prepare for the change in status under SEN law that occurs once the child reaches the end of compulsory school age.
22
1.10 Local authorities should consider whether some young people may require support in expressing their views, including whether they may need support from an
advocate (who could be a family member or a professional). Local authorities must not use the views of parents as a proxy for young people’s views. Young people will have their own perspective and local authorities should have arrangements in place to engage with them directly.
Involving children, young people and parents in planning,
commissioning and reviewing services
1.11 Local authorities must consult children with SEN or disabilities, their parents, and young people with SEN or disabilities in reviewing educational and training provision and social care provision and in preparing and reviewing the Local Offer. It is
important that they participate effectively in decisions about support available to them in their local area. Chapters 3 and 4 provide guidance on these duties. 1.12 Effective participation should lead to a better fit between families’ needs and the
services provided, higher satisfaction with services, reduced costs (as long-term benefits emerge) and better value for money. Local authorities should work with children, young people and parents to establish the aims of their participation, mark progress and build trust. They should make use of existing organisations and forums which represent the views of parents – and those which represent the views of children and young people directly – and where these do not exist, local authorities should consider establishing them. Effective participation happens when:
• it is recognised, valued, planned and resourced (for example, through appropriate remuneration and training)
• it is evident at all stages in the planning, delivery and monitoring of services • there are clearly described roles for children, young people and parents • there are strong feedback mechanisms to ensure that children, young
people and parents understand the impact their participation is making
Parent Carer Forums
1.13 Parent Carer Forums are representative local groups of parents and carers of children and young people with disabilities who work alongside local authorities, education, health and other service providers to ensure the services they plan, commission, deliver and monitor meet the needs of children and families. Parent Carer Forums have been established in most local areas and local authorities are actively encouraged to work with them. More information about Parent Carer Forums is available from the websites of Contact a Family and the National Network of
23
Parent Carer Forums. Links to them can be found in the References section under Chapter 1.
Identifying children and young people’s needs
1.14 Local authorities must carry out their functions with a view to identifying all the children and young people in their area who have or may have SEN or have or may have a disability (Section 22 of the Children and Families Act 2014).
1.15 Local authorities may gather information on children and young people with SEN or disabilities in a number of ways. Anyone can bring a child or young person who they believe has or probably has SEN or a disability to the attention of a local authority (Section 24 of the Children and Families Act 2014) and parents, early years providers, schools and colleges have an important role in doing so.
1.16 CCGs, NHS Trusts and NHS Foundation Trusts must inform the appropriate local authority if they identify a child under compulsory school age as having, or probably having, SEN or a disability (Section 23 of the Children and Families Act 2014). 1.17 A child’s parents, young people, schools and colleges have specific rights to request
a needs assessment for an EHC plan and children and their parents and young people should feel able to tell their school or college if they believe they have or may have SEN. The legal test of when a child or young person requires an EHC plan remains the same as that for a statement under the Education Act 1996. Therefore, it is expected that all those who have a statement and who would have continued to have one under the current system, will be transferred to an EHC plan – no-one should lose their statement and not have it replaced with an EHC plan simply because the system is changing. Similarly, local authorities have undertaken LDAs for young people either because they had a statement at school or because, in the opinion of the local authority, they are likely to need additional support as part of their further education or training and would benefit from an LDA to identify their learning needs and the provision required to meet those needs. Therefore, the expectation is that young people who are currently receiving support as a result of an LDA and remain in further education or training during the transition period, who request and need an EHC plan, will be issued with one.
1.18 Chapters 5, 6 and 7 provide guidance for early years providers, schools and colleges on identifying children and young people’s SEN and making provision to meet those needs as early as possible.
1.19 Local authorities, CCGs and other partners must work together in local Health and Wellbeing Boards to assess the health needs of local people, including those with SEN or who are disabled. This assessment, the Joint Strategic Needs Assessment, informs a local Health and Wellbeing Strategy which sets priorities for those who
24
commission services. Local authorities must keep their educational and training provision and social care provision for children and young people with SEN or disabilities under review (Section 27 of the Children and Families Act 2014). In carrying out this duty, the local authority will gather information from early years providers, schools and post-16 institutions. In most cases, those institutions must, in turn, co-operate with the local authority. The local authority must publish and keep under review its Local Offer of provision in consultation with children, their parents and young people. Guidance on these matters is given in Chapters 3 and 4.
Greater choice and control for parents and young people over their
support
1.20 A local authority’s Local Offer should reflect the services that are available as a result of strategic assessments of local needs and reviews of local education and care provision (Section 27 of the Children and Families Act 2014) and of health provision (Joint Strategic Needs Assessments and Joint Commissioning
arrangements (Section 26 of the Children and Families Act 2014). Linking these assessments and reviews to the Local Offer will help to identify gaps in local provision. Local authorities must involve children and young people with SEN or disabilities and the parents of children with SEN or disabilities in the development and review of the Local Offer. This will help to ensure it is responsive to local families. Guidance on the Local Offer is provided in Chapter 4.
1.21 Parents of children who have an EHC plan and young people who have such a plan have a right to ask for a particular educational institution to be named in the plan and for a Personal Budget for their support. Guidance is given in Chapter 9.
Collaboration between education, health and social care services to
provide support
1.22 If children and young people with SEN or disabilities are to achieve their ambitions and the best possible educational and other outcomes, including getting a job and living as independently as possible, local education, health and social care services should work together to ensure they get the right support.
1.23 When carrying out their statutory duties under the Children and Families Act 2014, local authorities must do so with a view to making sure that services work together where this promotes children and young people’s wellbeing or improves the quality of special educational provision (Section 25 of the Children and Families Act 2014). Local authorities must work with one another to assess local needs. Local
authorities and health bodies must have arrangements in place to plan and
commission education, health and social care services jointly for children and young people with SEN or disabilities (Section 26). Chapter 3 gives guidance on those duties.
25
High quality provision to meet the needs of children and young
people with SEN
1.24 High quality teaching that is differentiated and personalised will meet the individual needs of the majority of children and young people. Some children and young people need educational provision that is additional to or different from this. This is special educational provision under Section 21 of the Children and Families Act 2014. Schools and colleges must use their best endeavours to ensure that such provision is made for those who need it. Special educational provision is underpinned by high quality teaching and is compromised by anything less.
1.25 Early years providers, schools and colleges should know precisely where children and young people with SEN are in their learning and development. They should:
• ensure decisions are informed by the insights of parents and those of children and young people themselves
• have high ambitions and set stretching targets for them • track their progress towards these goals
• keep under review the additional or different provision that is made for them • promote positive outcomes in the wider areas of personal and social
development, and
• ensure that the approaches used are based on the best possible evidence and are having the required impact on progress
Chapters 5, 6 and 7 give guidance on identifying and supporting children and young people with SEN or disabilities.
A focus on inclusive practice and removing barriers to learning
1.26 As part of its commitments under articles 7 and 24 of the United Nations Conventionof the Rights of Persons with Disabilities, the UK Government is committed to inclusive education of disabled children and young people and the progressive removal of barriers to learning and participation in mainstream education. The Children and Families Act 2014 secures the general presumption in law of mainstream education in relation to decisions about where children and young people with SEN should be educated and the Equality Act 2010 provides protection from discrimination for disabled people.
1.27 Where a child or young person has SEN but does not have an EHC plan they must
26
The School Admissions Code of Practice requires children and young people with SEN to be treated fairly. Admissions authorities:
• must consider applications from parents of children who have SEN but do not have an EHC plan on the basis of the school’s published admissions criteria as part of normal admissions procedures
• must not refuse to admit a child who has SEN but does not have an EHC plan because they do not feel able to cater for those needs
• mustnot refuse to admit a child on the grounds that they do not have an EHC plan
1.28 The Equality Act 2010 prohibits schools from discriminating against disabled children and young people in respect of admissions for a reason related to their disability. Further education (FE) colleges manage their own admissions policies and are also prohibited from discriminating against disabled young people in respect of
admissions. Students will need to meet the entry requirements for courses as set out by the college, but should not be refused access to opportunities based on whether or not they have SEN.
1.29 Children and young people without an EHC plan can be placed in special schools and special post-16 institutions only in the following exceptional circumstances:
• where they are admitted to a special school or special post-16 institution to be assessed for an EHC plan with their agreement (in the case of a young
person) or the agreement of their parent (in the case of a child), the local authority, the head teacher or principal of the special school or special post-16 institution and anyone providing advice for the assessment
• where they are admitted to a special school or special post-16 institution following a change in their circumstances with their agreement (in the case of a young person) or the agreement of their parent (in the case of a child), the local authority and the head teacher or principal of the special school or special post-16 institution. Where an emergency placement of this kind is made the local authority should immediately initiate an EHC needs
assessment or re-assessment
• where they are in hospital and admitted to a special school which is established in a hospital, or
• where they are admitted to a special academy (including a special free school) whose academy arrangements allow it to admit children or young people with SEN who do not have an EHC plan
27
1.30 The last of these provisions enables the Secretary of State to approve academy arrangements for individual special academies or special free schools that are innovative and increase access to specialist provision for children and young people without EHC plans. Those academies the Secretary of State authorises will make clear through their Funding Agreement that a child or young person with SEN but no EHC plan should be placed there only at the request of their parents or at their own request and with the support of professional advice such as a report from an
educational psychologist. A special academy or special free school with these arrangements will be able to admit only those children who have a type of SEN for which they are designated. They will have adopted fair practices and arrangements that are in accordance with the Schools Admission Code for the admission of children without an EHC plan.
1.31 The leaders of early years settings, schools and colleges should establish and maintain a culture of high expectations that expects those working with children and young people with SEN or disabilities to include them in all the opportunities
available to other children and young people so they can achieve well.
1.32 There is a significant overlap between children and young people with SEN and those with disabilities and many such children and young people are covered by both SEN and equality legislation.
1.33 The Equality Act 2010 and Part 3 of the Children and Families Act 2014 interact in a number of important ways. They share a common focus on removing barriers to learning. In the Children and Families Act 2014 duties for planning, commissioning and reviewing provision, the Local Offer and the duties requiring different agencies to work together apply to all children and young people with SEN or disabilities. In carrying out the duties in the Children and Families Act 2014, local authorities and others with responsibilities under that Act, are covered by the Equality Act.
1.34 In practical situations in everyday settings, the best early years settings, schools and colleges do what is necessary to enable children and young people to develop, learn, participate and achieve the best possible outcomes irrespective of whether that is through reasonable adjustments for a disabled child or young person or special educational provision for a child or young person with SEN.
1.35 Much of the guidance in this Code of Practice focuses on the individual duties owed to children and young people with SEN. When early years settings, schools and colleges, local authorities and others plan and review special educational provision and make decisions about children and young people with SEN (chapters 5 to 7) and 9) they should consider, at the same time, the reasonable adjustments and access arrangements required for the same child or young person under the Equality Act.
28
1.36 The presumption of mainstream education is supported by provisions safeguarding the interests of all children and young people and ensuring that the preferences of the child’s parents or the young person for where they should be educated are met wherever possible.
1.37 Special schools (in the maintained, academy, non-maintained and independent sectors), special post-16 institutions and specialist colleges all have an important role in providing for children and young people with SEN and in working
collaboratively with mainstream and special settings to develop and share expertise and approaches.
1.38 Children and young people with SEN have different needs and can be educated effectively in a range of mainstream or special settings. Alongside the general presumption of mainstream education, parents of children with an EHC plan and young people with such a plan have the right to seek a place at a special school, special post-16 institution or specialist college. Further details of the arrangements for Education, Health and Care Plans are set out in Chapter 9.
Supporting successful preparation for adulthood
1.39 With high aspirations, and the right support, the vast majority of children and young people can go on to achieve successful long-term outcomes in adult life. Local authorities, education providers and their partners should work together to help children and young people to realise their ambitions in relation to:
• higher education and/or employment – including exploring different
employment options, such as support for becoming self-employed and help from supported employment agencies
• independent living – enabling people to have choice and control over their lives and the support they receive, their accommodation and living
arrangements, including supported living
• participating in society – including having friends and supportive relationships, and participating in, and contributing to, the local community
• being as healthy as possible in adult life
1.40 All professionals working with families should look to enable children and young people to make choices for themselves from an early age and support them in making friends and staying safe and healthy. As children grow older, and from Year 9 in school at the latest, preparing for adult life should be an explicit element of conversations with children and their families as the young person moves into and through post-16 education. For children and young people in or beyond Year 9 with
29
EHC plans, local authorities have a legal duty to include provision to assist in preparing for adulthood in the EHC plan review.
1.41 Chapter 8 provides further guidance on how to support children and young people in preparing for adult life. Provision required for preparation for adulthood should inform joint commissioning of services, the Local Offer, EHC needs assessments and plans, and education and training provision for all children and young people with SEN.
30
2 Impartial information, advice and support
What this chapter covers
This chapter is about the information, advice and support which local authorities
must provide for children, young people and parents, covering special educational needs (SEN), disability, health and social care.
Relevant legislation
Primary
Sections 19(c), 26(3), 32 and 49 of the Children and Families Act 2014
Regulations
The Special Educational Needs and Disability Regulations 2014 The Special Educational Needs (Personal Budgets) Regulations 2014
Introduction
2.1 Local authorities must arrange for children with SEN or disabilities for whom they are responsible, and their parents, and young people with SEN or disabilities for whom they are responsible, to be provided with information and advice about matters relating to their SEN or disabilities, including matters relating to health and social care. This must include information, advice and support on the take-up and management of Personal Budgets. In addition, in carrying out their duties under Part 3 of the Children and Families Act 2014, local authorities must have regard to the importance of providing children and their parents and young people with the information and support necessary to participate in decisions.
2.2 Local authorities must take steps to make these services known to children, their parents and young people in their area; head teachers, proprietors and principals of schools and post-16 institutions in their area, and others where appropriate.
2.3 They must ensure that their Local Offer includes details of how information, advice and support related to SEN and disabilities can be accessed and how it is resourced (Chapter 4, The Local Offer).
2.4 Information, advice and support should be provided through a dedicated and easily identifiableservice. Local authorities have established Information, Advice and Support Services (formerly known as Parent Partnership services) to provide
information, advice and support to parents in relation to SEN. In addition, many local authorities provide or commission information, advice and support services for young
31
people. Local authorities should build on these existing services to provide the information, advice and support detailed in this chapter.
2.5 Information, Advice and Support Services should be impartial, confidential and accessible and should have the capacity to handle face-to-face, telephone and electronic enquiries.
2.6 Local authorities should involve children, young people and parents (including local Parent Carer Forums and Youth Forums) in the design or commissioning of services providing information, advice and support in order to ensure that those services meet local needs. Local authorities should do this in a way which ensures that children, young people and parents feel they have participated fully in the process and have a sense of co-ownership. Chapters 3 and 4 give further detail on how local authorities should engage these groups in planning, commissioning and reviewing services, and in developing the Local Offer.
2.7 The joint arrangements that local authorities and Clinical Commissioning Groups (CCGs) must have for commissioning education, health and care provision for children and young people with SEN or disabilities must include arrangements for considering and agreeing what information and advice about education, health and care provision is to be provided, by whom and how it is to be provided. These joint arrangements should consider the availability of other information services in their area (services such as youth services, Local Healthwatch, the Patient Advice and Liaison Service (PALS) and the Family Information Service) and how these services will work together.
2.8 When designing Information, Advice and Support Services, local authorities should take into account the following principles:
• The information, advice and support should be impartial and provided at arm’s length from the local authority and CCGs
• The information, advice and support offered should be free, accurate,
confidential and in formats which are accessible and responsive to the needs of users
• Local authorities should review and publish information annually about the effectiveness of the information, advice and support provided, including customer satisfaction (see also Chapter 4, The Local Offer)
• Staff providing information, advice and support should work in partnership with children, young people, parents, local authorities, CCGs and other relevant partners
32
• The provision of information, advice and support should help to promote independence and self-advocacy for children, young people and parents • Staff providing information, advice and support should work with their local
Parent Carer Forum and other representative user groups (such as Youth Forums) to ensure that the views and experiences of children, young people and parents inform policy and practice
Who are information, advice and support for?
2.9 Local authorities should recognise the different needs of children, young people and parents.
Children
2.10 The Children and Families Act 2014 requires local authorities to provide children with information, advice and support relating to their SEN or disability. Many children will access information, advice and support via their parents. However, some children, especially older children and those in custody, may want to access information, advice and support separately from their parents, and local authorities must ensure this is possible.
Parents
2.11 Staff working in Information, Advice and Support Services should be trained to support, and work in partnership with, parents.
2.12 As a child reaches the end of compulsory school age (the end of the academic year in which they turn 16), some rights to participate in decision-making about Education Health and Care (EHC) plans transfer from the parent to the young person, subject to their capacity to do so, as set out in the Mental Capacity Act 2005 (See Chapter 8 for more information). Parents of young people can still access information, advice and support on behalf of, or with, the young person. Staff should be clear about the transfer of some rights and responsibilities to young people, and work sensitively with parents to help them understand their role.
2.13 There may be cases where the young person and the parents do not agree on an issue. Legally, it is the young person’s decision which prevails, subject to their capacity. Where there are disagreements, staff providing information, advice and support should work impartially and separately with both the parents and the young person.
Young people
2.14 Young people are entitled to the same quality and level of information, advice and support as parents. Local authorities should recognise the specific needs of this
33
group, while ensuring co-ordination and consistency in what is offered to children, young people and parents.
2.15 Young people must have confidence that they are receiving confidential and impartial information, advice and support. Staff working directly with young people should be trained to support them and work in partnership with them, enabling them to participate fully in decisions about the outcomes they wish to achieve. Young people may be finding their voice for the first time, and may need support in
exercising choice and control over the support they receive (including support and advice to take up and manage Personal Budgets). Advocacy should be provided where necessary. Local authorities must provide independent advocacy for young people undergoing transition assessments, provided certain conditions are met (see section 67 of the Care Act 2014).
2.16 The service should direct young people to specialist support to help them prepare for employment, independent living (including housing) and participation in society and should provide access to careers advice where needed. Duties on schools and colleges to give impartial careers advice are covered in Chapter 8, Preparing for adulthood from the earliest years.
What needs to be provided?
2.17 The scope of this information, advice and support should cover initial concerns or identification of potential SEN or disabilities, through to ongoing support and
provision, which may include an EHC plan. The local authority must ensure children, young people and parents are provided with information and advice on matters relating to SEN and disability. This should include:
• local policy and practice • the Local Offer
• personalisation and Personal Budgets
• law on SEN and disability, health and social care, through suitably independently trained staff
• advice for children, young people and parents on gathering, understanding and interpreting information and applying it to their own situation
• information on the local authority’s processes for resolving disagreements, its complaints procedures and means of redress
34
2.18 Local Healthwatch offers advice to patients and their families in relation to health services, and CCGs and local authorities should ensure that this information is clearly available to families, including through the Local Offer.
2.19 To meet local needs, local authorities should provide the following forms of support through their Information, Advice and Support Service(s):
• Signposting children, young people and parents to alternative and
additional sources of advice, information and support that may be available locally or nationally
• Individual casework and representation for those who need it, which should include:
o support in attending meetings, contributing to assessments and reviews and participating in decisions about outcomes for the child or young person
o directing children, young people, parents and those who support and work with them to additional support services where needed, including services provided by the voluntary sector. These services should include support relating to preparing for adulthood, including housing support, careers advice and employment support
• Help when things go wrong, which should include:
• supporting children, young people and parents in arranging or attending early disagreement resolution meetings
• supporting children, young people and parents in managing mediation, appeals to the First-tier Tribunal (Special Educational Needs and Disability), exclusions and complaints on matters related to SEN and disability
• making children, young people and parents aware of the local
authority’s services for resolving disagreements and for mediation, and on the routes of appeal and complaint on matters related to SEN and disability (see Chapter 11, Resolving disagreements)
• Provision of advice through individual casework and through work with parent carer support groups, local SEN youth forums or disability groups, or training events
